In re N.M. , 2021 Ohio 4275 ( 2021 )

[Cite as In re N.M., 2021-Ohio-4275.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: THE C, S, AND M CHILDREN : APPEAL NO. C-210215
TRIAL NO. F06-267Z
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 8, 2021
Cynthia S. Daugherty, for Appellant Mother,
Raymond T. Faller, Hamilton County Public Defender, and Robert Adam Hardin,
Assistant Public Defender, Guardian Ad Litem for N.M, E.M., D.S., and B.C.,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Silvia Ariera,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Mother appeals the decision of the Hamilton County Juvenile Court
granting permanent custody of her children N.M., E.M., D.S., and B.C. to the
Hamilton County Department of Job and Family Services (“HCJFS”). For the
reasons discussed below, we affirm the juvenile court’s judgment.
Background and Procedural History
{¶2} This case has an extensive history and concerns custody of four
children: N.M., E.M., D.S., and B.C. Interim custody of N.M., E.M., and B.C. was
granted to HCJFS on July 7, 2017. On October 30, 2017, N.M. and E.M were
adjudicated dependent, and D.S. was adjudicated dependent and abused.
Temporary custody of N.M., E.M., and D.S. was granted to HCJFS on March 20,
2018, and extended on June 12, 2018.
{¶3} Interim custody of B.C., who was born in May of 2018, was granted to
HCJFS on June 4, 2018. B.C. was adjudicated dependent and abused on July 12,
2018, and temporary custody of B.C. was granted to HCJFS on September 6, 2018.
{¶4} HCJFS filed a motion to modify temporary custody of all four children
to permanent custody on December 6, 2018. The hearing was held over seven
separate days: September 12, 2019, October 22, 2019, October 23, 2019, December
2, 2019, January 16, 2020, March 6, 2020, and July 23, 2020.
September 12, 2019 Hearing
Testimony of Jeremy Page
{¶5} Jeremy Page is a caseworker for HCJFS. He testified that the case-
plan goals for mother included: (1) obtain and maintain stable housing, (2) obtain
and maintain stable employment, (3) visitation with her children that she is allowed
visitation with, (4) participation in random drug screens, which included urine and
2
OHIO FIRST DISTRICT COURT OF APPEALS
hair follicles, (5) participation in mental-health treatment through Greater
Cincinnati Behavioral Health (“GCB”), and (6) participation in parenting classes
through Family Nurturing Center (“FNC”).
{¶6} Mother completed parenting classes through FNC in August or
September of 2019. The referral for the classes was sent out in January of 2019. The
purpose of the classes was to help increase mother’s protective capacities towards
her children and to increase the parent/child interaction between her and the
children.
{¶7} Mother completed a mental-health diagnostic assessment. Page
testified, “And with that assessment, she was recommended for mental health
treatment but had reported that she had already been engaged with GCB for a
number of years, that she has been connected with a case manager and a therapist,
and she wanted to maintain her services there.” Page was unable to speak with GCB,
despite “calling heavy” to get in contact with them. When he left them voicemails, he
never received a call back. He asked mother to reach out to them to let them know
he was trying to contact them, but GCB never got back with him. Mother did sign a
release of information for HCJFS. He was unaware if mother also signed a release
for GCB but was told by an operator at GCB that they could not release any
information without a signed release on their end. Mother did bring a letter to court
once that stated she was engaged in therapy, but HCJFS was never able to confirm
what she was working on. Mother told him that she would get the records, but when
he would ask mother about the records, she continually indicated that she was
following up with her case manager.
{¶8} Mother was not compliant with drug screens. Mother would
participate in urine screens and started out doing “hair follicles,” but began refusing
3
OHIO FIRST DISTRICT COURT OF APPEALS
to do hair-follicle tests altogether in early 2019. Mother gave two reasons for her
refusal: (1) it was impacting the stability of her mental health, and she was going to
get a letter from her therapist recommending not to do hair-follicle tests, and (2) she
indicated the screens would be positive for marijuana because she had a medical
marijuana card. Mother admitted to marijuana use. Page testified that mother never
showed him her medical marijuana card or a prescription or “anything in regards
[sic] to it being medically recommended to use marijuana.” She never told him what
condition she had that the medical marijuana card was used for. There was also a
concern for oxycodone since B.C. was born positive for oxycodone in his system in
May of 2018. B.C. went through withdrawal symptoms from being born positive.
{¶9} To his knowledge, mother had stable employment at the time of the
hearing. She reported working at IHOP since L.C. was born.1 Page never confirmed
that mother was working there, but he believed that mother was working there.
Prior to that, she was working security at Sam’s Club and a couple of “odd-and-end
jobs.” He testified that mother’s work history was inconsistent and that she changed
jobs a lot. Mother reported “at least three” different jobs since he had case
responsibility. He never saw a pay stub from any of the jobs.
{¶10} Mother did not provide any proof that she obtained stable housing.
She previously indicated that she was staying at a weekly motel but did not
communicate the address of the hotel to HCJFS. Page testified that a parent living in
a hotel is not a concern to him, “if they are able to maintain the stability of it.”
Mother has a history of unstable housing and has reported “more than five” houses
or placements since he had case responsibility.
1 L.C. is mother’s youngest child that is not the subject of this appeal.
4
OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Mother’s visitation was stopped in August of 2018 and was reinstated
in early 2019. Mother only had visitation with B.C. and D.S. Visitations were
stopped for E.M. and N.M. after they disclosed to their therapist that they were
sexually abused by their mother’s, at the time, boyfriend’s father.
{¶12} Page testified that he did not feel that mother could be reinstated with
the children at the time of the hearing. He said:
The concerns that the agency currently has is that mother has
not obtained nor provided any proof of stable housing at this time.
She also is still in communication with [boyfriend], who she indicated
she’s had a domestically violent relationship with in the past. She’s
also indicated that he’s currently domestically violent with his wife.
Mother struggles to understand the concerns that the agency has for
the safety of the children. And we just don’t believe it would be in their
best interest to reunify at this time.
{¶13} He testified that mother indicated there was abuse to D.S. Specifically,
D.S. was thrown in a car seat against the wall during an altercation between mother
and boyfriend. Mother was referred for a domestic-violence assessment with the
YWCA, but no services were recommended. Page agreed that he would consider this
a completed assessment. Mother was still in communication with boyfriend at the
time of the hearing.
October 22 and 23, 2019 Hearings
Testimony of Maternal Grandmother
{¶14} Maternal grandmother testified that mother was staying in a very nice
motel on Chester Road, and testified that, for the last three months, mother had
stable and paid housing. Mother also stays with grandmother at her house a few
5
OHIO FIRST DISTRICT COURT OF APPEALS
times a week or on the weekends. When asked if she was aware that mother “knew
about the rape that was occurring in her home,” grandmother replied, “I had --
somebody had told me that, but I was not told that directly.” When asked if E.M. and
N.M. stopped visitation with mother because mother knew about the rape, she
responded:
The reason I was told that they didn’t want to visit was because
they were afraid to come down here because of how close [boyfriend’s
father] and [boyfriend] are to the area that they would be in. They
were afraid of those two people. They are not afraid of their mother.
They love their mother. But there’s different things being done. I
mean, [boyfriend’s father] is not proper for anybody. And because of
that, he put the fear of, I will kill you if you tell somebody. And that’s a
lot of the reasons why they want to be up there away from here. They
needed to feel safe. And it wasn’t that it wasn’t safe, it was too close.
{¶15} Boyfriend’s father lived with mother and boyfriend in 2017.
Boyfriend’s father was “charged with several things involving minors.” The rapes of
E.M. and N.M. were reported in August of 2018. Grandmother testified, “I was told
that -- the storms that were going through upper Ohio and through here, the lights
went out, and [E.M.] got afraid and was screaming, turn the light on, bad things
happen in the dark. And that’s when everything started to bubble out.”
{¶16} When asked if she had any concerns about mother’s ability to parent,
grandmother responded, “Yes. She has to let us help her a little more, be able to not
shoulder everything herself, let us help as a family working together for the
children.”
6
OHIO FIRST DISTRICT COURT OF APPEALS
Testimony of D.D.
{¶17} D.D. has legal custody of mother’s youngest child, L.C. She went to
grade school with Mother. She also had custody of S.M. at one point.2 D.D.
supervised some of the visits with mother and the children, but never with E.M. or
N.M. E.M. and N.M. reported to her that they did not want to visit with mother.
D.D. testified that there were “issues” with the visits. At a visit in May of 2018, D.S.
ran off and another supervisor had to go chase her down. D.D. felt this was mother’s
responsibility to make sure that she knew where the children were and, at the time,
she did not. When discussing a visit in August of 2018, she stated that S.M. ran into
the room crying, and told her that mother had called her, N.M. and E.M. “curse
words.” She also testified that D.S. and B.C. would cry and want to be with their
foster mother during the visits. At a visit in July or August of 2019, mother brought
marijuana in a cigarette pack.
{¶18} D.D. did not feel that mother could “handle” the children and their
needs “without help” if they were returned to her. She testified, “I know she is
working, but I also know that she doesn’t make enough money to take care of herself
and four children, so she would probably need some government assistance, which I
mean, that’s acceptable.” She also felt mother would need support from her family
and friends because, “[t]he younger children are not able to self protect [sic].”
{¶19} Mother reported arguing and fighting with boyfriend consistently to
D.D. until about six months ago. D.D. stated, “It was physical for some of the time.”
When asked what she meant by physical, she responded, “Pushing. I don’t think
there was ever any hitting discussed.” She testified that mother reported being
2 S.M. is mother’s oldest child that is not the subject of this appeal.
7
OHIO FIRST DISTRICT COURT OF APPEALS
pushed by boyfriend and his wife. She stated, “[Boyfriend] was pushing to separate
them, and [boyfriend’s wife] was assaulting [mother].” All three were living together
for about four to six months. As far as she was aware, mother had not been involved
with him for about six weeks. Her knowledge was based on screenshots of text
messages sent to her by mother and boyfriend. Mother was with boyfriend for about
four years, on and off.
{¶20} D.D. testified that mother smoked marijuana daily, and that she saw a
“digital copy” of mother’s medical marijuana card. She also testified that mother
reported to her that she was finally able to get her prescription to go with her medical
marijuana card, but she never saw the prescription. She stated, “And then I also
know that [mother] drank from a cup that had oxycodone in it before [B.C.] was
born. * * * She said she had just picked up a cup thinking that it was hers because all
the cups were the red solo cups.” This happened at a cookout on Memorial Day.
Mother never reported any cocaine use to her. D.D. agreed that her testimony was
not that mother was “actively using any drugs that she didn’t have a prescription for
or [that] wasn’t an accident.”
{¶21} In the past two years, mother reported to D.D. that she did not have a
place to stay or was “couch surfing,” for all the time except for the past three months.
D.D. stated, “She had to sleep outside and in her car on three occasions, but most of
the time she could stay at her friend’s house.”
Testimony of Robin Mulcahy
{¶22} Robin Mulcahy does parenting services through FNC. She was
mother’s parenting coach. Mother came in for a parenting assessment in March of
2019. They determined that mother would benefit the most from their nurturing,
parenting, and education curriculum, which is a one-on-one class. Mother
8
OHIO FIRST DISTRICT COURT OF APPEALS
participated in the class. Mother completed the assessment in April 2019 and
parenting meetings began in May 2019. She completed the classes in early
September of 2019. There were approximately 14 sessions in total. Mother attended
and was on time, with minimal cancellations, and participated throughout services.
One of the topics of preventative parentings was domestic violence and “just
discussing healthy and unhealthy relationships.” Mother alluded to unhealthy
relationships in the past during these discussions. They also discussed “how drug
use could impact parenting and good judgment and protective capacities in
parenting.” She did not recall mother ever telling her about marijuana use. When
asked if she would find that concerning, she responded, “Yes. If she had told me
that, we would have discussed that specifically.”
{¶23} They took an education-based approach with mother because the
children were not involved and she “was not able to see hands-on parenting skills.”
Mulcahy never observed mother with the children involved in this case but did
observe her with her oldest and youngest child, who each attended one appointment.
She did not believe that mother had visitation with any of the other children at the
time of services. She did not observe any issues while mother was parenting the
children. She did not recall witnessing anything concerning during the sessions. She
observed that mother and S.M. had open communication. She stated, “They were
cordial and friendly and joked with each other, and appeared to have fun.” She
witnessed mother feed, burp and change L.C.’s diaper.
{¶24} She testified that mother “changed housing early in our assessment
process, and she placed her services on hold before we actually began individual
meetings to obtain housing. And then she was seeking housing at the end of our
term of coaching as well.”
9
OHIO FIRST DISTRICT COURT OF APPEALS
Testimony of P.R.
{¶25} The children were placed with P.R. at the time of the hearing. D.S.
came to her in April of 2018. B.C. came at the beginning of June 2018. E.M. and
N.M. came in the middle of June of 2018. When B.C. first came to her, he was
screaming and crying all the time. Then he started shaking so they went to the
doctor. D.S. was 14 months old when she came to her, and she was not speaking.
She started intervention services for speech and was speaking at least 20 words
within four months. She testified that the children were all doing great.
Testimony of Orlando Ramirez
{¶26} Orlando Ramirez is employed with GCB as a caseworker/case
manager. He is mother’s case manager. A case manager helps to facilitate recovery
“from any mental health issues she may have.” At the time of his testimony, he had
known Mother for a couple of months. Mother’s previous caseworker retired. He
met with her “three to four times in a couple months, which is pretty average.” He
testified, “She never called off any meetings with me. She engages pretty frequently.”
He did not remember what her diagnoses were.
{¶27} During their sessions, they talked about her goals for the coming year.
Mother’s goals were related to maintaining her benefits, getting her children back,
housing, and income. These goals were set by mother “a couple weeks ago.”
Ramirez testified that he was not a therapist and did not do therapy with mother.
When asked if mother attended therapy, he responded, “I believe she used to attend
therapy, but the sessions are only 12-week periods and then they stop. If you want
more therapy sessions, you go for it.” Ramirez did not have the capability to
prescribe medication to mother. He did not know when mother last engaged in
10
OHIO FIRST DISTRICT COURT OF APPEALS
therapy and could not remember if mother was currently on medication through
GCB.
{¶28} Regarding mother’s goal to get her children back, Ramirez testified
that the goal allowed him to help keep mother “on track.” This included
encouragement and talking to her about what she might be feeling. Regarding the
housing goal, the HomeLink program is a subsection of GCB that focuses specifically
on housing. He stated, “I believe we filled out an application, but it takes time for
that to process, some time ago.” The housing goal also allowed him to “help her look
for housing in certain areas, come up with ways, you know, to save money, all that
stuff.” He testified, “But she’s pretty on top of that mostly for herself.”
{¶29} According to Ramirez, mother was working at least two jobs, maybe
three. When asked how he knew about mother’s jobs, he testified, “She’s talked
about it.” He never asked for pay stubs. He testified that mother also reported that
she was currently living in a hotel. He stated, “I know she’s been looking for housing,
looking for affordable places that she can stay with her kids.” Mother was compliant
with everything he asked her to do. When asked if he had any reason to believe that
mother would not continue to be compliant with services, he responded, “No.
There’s no reason at all, until she, herself, determines that she doesn’t feel like she
needs services anymore.” He has met with mother in the community and at GCB.
He also met with her at a hotel, but not the hotel where mother was staying at the
time of the hearing. He had not seen the hotel where mother was staying at the time
of the hearing.
Testimony of Mother
{¶30} Mother testified that this case began, “[b]ecause there was a complaint
made that I was using drugs, and there was [sic] issues in the home, and there had
11
OHIO FIRST DISTRICT COURT OF APPEALS
been problems between me and my now ex.” Her “ex” is boyfriend. When asked if
she had contact with him anymore, mother responded, “No. And I’ve been telling
him the last couple months to go away, go be with his wife, leave me be. He’s created
enough problems for me and my family.” They broke up the night L.C. was born.
She testified, “[H]e decided to show up drunk to our son’s birth, and then decided
that it was more important to beat the crap [sic] out of somebody who was protecting
his other children. When that came to light is when I decided that he no longer
needed to be a part of mine or my children’s life, period, point blank.” This happened
about four months prior to the hearing in June of 2019. The last communication she
had with him was “about six weeks ago.” Any communication she had with him since
the breakup was to tell him to “go away.”
{¶31} HCJFS asked mother to complete a mental-health assessment, provide
proof that she is working with GCB, complete drug screens, and participate in
therapy. She testified that she has consistently provided proof that she is working
with GCB, completed drug screens, and participated in therapy twice. HCJFS later
asked her to complete a domestic-violence assessment. She testified that income was
never a question because she has always held a job. She admitted that she has been
struggling with housing on and off for the last two years. She completed one mental-
health assessment in September of 2017 and one in September of 2018. She testified
that her diagnoses were, “Depression in three forms, PTSD, cannabis use, they had
me listed as one of the things, and I’m not quite sure – I can’t remember. I think it
was generalized anxiety with panic disorder was the last, if I’m not mistaken.” The
recommendation was therapy. Mother testified that she has been “going” to GCB
since 2006, when she was 17 years old. When asked about housing, mother said,
12
OHIO FIRST DISTRICT COURT OF APPEALS
“Well, the last two years, I’ve been from place to place, either staying with friends or
occasionally someone that I was with at some point.”
{¶32} At the time of the hearing, mother was living at the Hometown Studios
hotel in Sharonville on Chester Road. She testified, “This is the third hotel that I’ve
been at and progressively getting better with each one that I’ve gone to.” The first
one was Gateway. Then it was the Travel Inn. Her goal was to get a home of her
own. She testified that, at one point, she almost had housing with the Cincinnati
Metropolitan Housing Authority (“CMHA”) but “because I did not have my
children’s Social Security numbers given to me in a reasonable amount of time [by
“children’s services”], my application was overlooked.” When asked about
HomeLink, she stated, “I’m actually pushing a third application through them
because of the unfortunality [sic] of losing Drew, my previous HomeLink worker,
from him quitting.”
{¶33} When asked if she completed drug screens, Mother testified, “Over the
last two years, I want to say maybe 20, maybe. And that’s a rough estimate over the
last two years, and there have been several that I have submitted hair.” She testified
that her PTSD made it hard for her to give a hair sample because, “I hear my hair
being cut and I want to puke. My nerves go all a wrack [sic] and I start having
flashbacks, and it’s not comfortable.” Mother admitted she missed a few drugs tests,
“either due to work or short notice and not having transportation.”
{¶34} Mother got a “medicinal card” from Green Relief. She testified that
this helps her with muscle spasms in her back and legs, her appetite, nausea, and
pain control from a spinal injury she had a few years ago. She also testified, “It helps
with my PTSD with the flashbacks, the emotions that come with it, in stabilizing me
and helping me to remember that I’m not there, I’m here now.” When asked about
13
OHIO FIRST DISTRICT COURT OF APPEALS
“grabbing the wrong cup,” mother responded, “I didn’t mean to do that shit. I didn’t
mean to grab the wrong cup. I wasn’t trying to hurt my kid. Mistakes happen.”
{¶35} When asked if she was in therapy, mother responded, “No.
Unfortunately, my last therapist had left GCB the week after [L.C.] had been born.”
She was in therapy from April until June while she was pregnant with L.C. Mother
agreed that she planned to get a new therapist. She testified that she completed a
domestic-violence assessment, but was not required to do anything further after the
assessment. Mother’s hours at IHOP were “cut.” She also worked for Upshift, which
is “a service in which you can find either permanent work or temporary work for
extra money.”
{¶36} When asked about the visit where she “cussed” at the children, mother
testified:
The one that they were expressing, which is the one they came
down for that someone was crying; I will say that I told her she was
acting a Jack and an ass because she was being stuck up, she was being
rude, she was being hateful to her sisters. And I told her I taught her
better than that. And, yes, I know it probably hurt her feelings, but she
was being hateful and rude to her sisters. And I told her she was
acting a Jack and an ass.
***
I told [N.M.] she was being hard-headed and rude because of
the factor she wasn’t listening to Trish, she was giving her problems,
bad mouthing her, fighting with her about doing things, wasn’t picking
up, wasn’t listening, basic attitude of a child going into the teenage
years.
14
OHIO FIRST DISTRICT COURT OF APPEALS
***
I didn’t think -- because of the factor I was telling her she was
acting a Jack, referring to a mule, and being an ass, as in being
arrogant and assuming and rude and hateful, I didn’t think that it
would be that big of an issue, because of the factor I was stating, you
are acting this way. It wasn’t outright saying that’s what she is. And I
figured it was the easier way. I wasn’t cussing at them for real, I wasn’t
doing anything. I was trying to reiterate to them [N.M., E.M., and
S.M.] they were taught better, they were raised better, and they need to
act as such, because they weren’t just representing themselves, they
were representing me and how I raised them, and I know I taught
them better.
***
[E.M.] was giving attitude and hissy-fitting and giving us
regular problems. I addressed that. I was trying to be a parent in
disciplining without physical need, but doing it through verbal
recorrection [sic] like, look, this ain’t [sic] right. You’re not supposed
to be doing this. You don’t talk that way to an adult, you don’t do these
things. These are your sisters; you’re supposed to be spending time
with them, not your other friends. You see them all the time. You
don’t see your siblings as often as you should; reiterating that family is
what is important, being respectful to adults, showing that you were
taught to follow orders, things of that nature. It wasn’t anything to
hurt them or make them feel less than what they are. And me and
15
OHIO FIRST DISTRICT COURT OF APPEALS
[S.M.] have addressed that. Me and [S.M.] have spoke [sic] about that,
and that’s been put in the past between us.
{¶37} Mother testified that her visitation was stopped in September of 2018
“because of what had come to light that [boyfriend’s father] had done to my
children.” The visits did not start back until June of the next year. Mother was told
she had to complete parenting classes to restart visitation.
December 2, 2019 Hearing
Testimony of Krystal Thomas
{¶38} Krystal Thomas was the caseworker assigned to the case in October of
2019. Mother did not have a therapist at the time of the hearing. When asked why
mother was not in therapy, Thomas stated:
She said she doesn’t have enough time. She feels that she’s
stable. She says that she has her case manager, and she also has her
doctor that uses [sic] for her marijuana card. That’s her primary
doctor. So she feels she can either [sic] talk to him about getting some
services. She can talk to her case manager about reaching out and
getting services. She said, with working and everything that she has
going on, that she doesn’t have time for therapy.
When asked why the agency wants mother in therapy, Thomas testified, “Mom has a
lot of trauma, past trauma that she should be dealing with. She has issues since the
case has been opened that she’s been dealing with as well.”
{¶39} Thomas had not yet asked mother to submit to a drug screen. Mother
did sign an updated release of information. As the time of the hearing, mother was
living with her mother. She had been living there for about two weeks. Thomas had
16
OHIO FIRST DISTRICT COURT OF APPEALS
not been to the home. In the two months since Thomas had the case, mother
reported three different living locations. Mother told Thomas she was working.
{¶40} She observed three to four visits with Mother since the last hearing in
October. All the visits occurred at HCJFS. The visits were moved to HCJFS after
Thomas received emails from mother and foster mother arguing over “who last went
where.” Thomas testified that B.C., “pretty much cries through the whole visit.”
Mother tries to calm him down by rocking him, walking him around and trying to
play videos. D.S. cried a lot during the first two visits. Thomas did not witness any
concerns with mother during the visits. Thomas told mother to complete orientation
at FNC for visitation about three weeks prior to the hearing. She testified, “[Mother]
didn’t do it for like two weeks. But the last two weeks, she had been [sic] trying to do
it.”
Testimony of Orlando Ramirez
{¶41} Mother had a therapist assigned to her in the past at GCB but did not
have a therapist assigned to her at the time of the hearing. When asked why, he
responded, “She doesn’t need a therapist currently.” It is the client’s choice to make.
He stated, “She can come to me and would be very quickly [sic] to sort of get back
into seeking therapy or psychiatry.” Mother was trying to work with HomeLink to
get housing. Care Management and HomeLink “would be the only service that
[Mother] is receiving right now at GCB.”
Testimony of Mother
{¶42} Medical marijuana is the only medicine Mother is currently taking.
She has a prescription from Dr. Khan. She has been seeing him since September of
2019. She testified, “He becomes my full primary care doctor.” She qualifies for this
prescription due to spinal injury, chronic pain, anxiety, and PTSD. She testified that
17
OHIO FIRST DISTRICT COURT OF APPEALS
she went to Dr. Kahn because, “I believe, holistically, that medical marijuana is a
better option than taking pain medication, nerve pills.” It was recommended that
she use it in a “sparing amount.”
{¶43} When asked why she was not in therapy, mother responded, “As of
June of this year, my last therapist actually left GCB, and I have not been reassigned
another one, and I have not asked for services otherwise because I have actually been
able to keep myself calm.” When asked if she would feel comfortable getting a
therapist if something came up, she responded, “I’ve screamed it every time I’ve
needed it, and that’s been multiple times since 2004 when I came home.” She had a
therapist in 2008, 2013, 2015, and 2018. When asked how long she was working
with a therapist from 2018 until today, she responded, “Almost both years. Almost
the whole time.”
{¶44} Mother agreed that she would complete a hair and urine drug screen if
the HCJFS caseworker asked her to complete it. She asserted that it would only
come back positive for marijuana. When asked why she had not wanted the hair-
follicle test in the past, she stated, “Because of my anxiety, my PTSD, the sound of
scissors wracked my nerves and throws me into an episode and makes me sick.”
{¶45} She had four visits with the children since the last hearing. The visits
went “progressively better.” When asked about her plan for housing, she stated,
“Right now, my goal is to get into a place of my own. That has been my goal.” If the
children were returned to her, they would all stay at grandmother’s home.
{¶46} When asked about where she was working, she responded, “Right now
I’m with Upshift, and they have me placed at Swim Outlet, which is a temp-to-hire
job. After 400 hours of being with them, I can be brought on to work with them
permanently, benefits and all.” She started there last week. She testified, “I’ve been
18
OHIO FIRST DISTRICT COURT OF APPEALS
there with them for two shifts, so I’ve done 16 hours with them this week alone.” She
was at Topics, another company through Upshift, the week before that. She stated,
“But I chose not to stay because of the hours and the way that they work.” She
worked at Topics for three weeks. Upshift is a “permanent-to-hire agency,” run
through an app on her phone. She worked at Surgical Applied Industries through
Upshift in September. This is when she started with Upshift. She worked at IHOP
from July to October. Before that, she was not working because she was placed on
bedrest in March while she was pregnant with L.C. Before that, she was at Agies
Security Company shortly after Christmas of 2018 through March.
March 6, 2020 Hearing
Testimony of Emily Maiorana
{¶47} Emily Maiorana is a diagnostician at GCB. She completes the yearly
mental-health assessments for all the clients on her team. She is a licensed
independent social worker. The last mental-health assessment she completed with
mother was in April of 2019. She testified, “For [mother], we recommended
counseling services to work on coping skills for anxiety and depression. And I
recommended that she continue to work with her care manager.” Counseling
services were suggested because mother said she wanted to work on her coping skills.
Maiorana was unable to tell the court if mother had followed through with any of the
recommendations. She testified that she would not know mother’s attendance in the
programs. She did not remember if mother had ever engaged in counseling.
Testimony of Orlando Ramirez
{¶48} Ramirez was working on getting mother back into counseling. He
testified that mother wanted to go to counseling “due to something that occurred in
the past that she wanted to talk about with the counselor.” He said there was an
19
OHIO FIRST DISTRICT COURT OF APPEALS
event that occurred “around the first of the year that made her sort of start
experiencing some of her symptomology.” He testified that tentative intake dates
had been scheduled, but mother had not started the process. When asked what had
prevented the process, he responded, “Well [mother] doesn’t have easy access to a
phone right now, which makes sort of coordinating things a little difficult.”
Additionally, he testified that most of the delay had been “on our end” getting the
paperwork processed. He went to try to see mother on Monday or Tuesday at her
home, but she wasn’t there. Mother did contact him via email this past Sunday.
When asked if mother had expressed any interest in any other programs, he
responded, “I think in the past she had expressed an interest in the HomeLinks [sic]
Program, that we had to find a more stable housing situation.” When asked if he had
any concerns with mother being compliant, he stated, “Only thing really would be
that she doesn’t have a cell phone now, which makes sort of coordinating difficult,
but that’s going to change soon, I hope.”
Testimony of Mother
{¶49} At the time of the hearing, mother was living with her mother. She
was added to the lease in December of 2019. She started working at Taco Bell in
February. She worked there for four days but quit after a dispute with coworkers and
managers. When asked why she had “spotty employment,” mother testified:
Some of it has been physical limitation. * * * Some of it has
been the factor [sic] that it’s hard to find a job when you have so many
court dates, so many other things that you have to balance and
whatnot. And a lot of people are not willing to work with that. It is
very difficult to try to get a job and tell them, oh, I have this court date
I have this court date oh, I have to take this off because I have to go do
20
OHIO FIRST DISTRICT COURT OF APPEALS
these assessments. Oh, I have to take these days off because I have to
go do these. * * * A lot of places don’t care if you have kids. They
don’t care if you have a life outside. They are there to have you work,
get a paycheck, and go home.
Mother stopped working for Upshift in December. She worked at Upshift from
September of 2019 to December of 2019.
{¶50} Mother was still working with her HomeLink worker, Shawna. When
asked how long she had stable housing from June of 2017 until the present, mother
responded that she had stable housing for a couple of months in 2019. Mother
testified that she has participated in therapy “on and off” since 2018. The last time
she had therapy was in June of 2019. Mother had custody of N.M. and E.M. when
they were raped. She denied having any knowledge of the rapes occurring.
July 23, 2020 Hearing
{¶51} At the start of the hearing, mother’s attorney told the court, “I don’t
want to throw my client under the bus, but I also want to protect myself. I’ve been
trying to get ahold of her since June, early June, and haven’t until about maybe two
days ago.” Mother was not present at the start of the hearing. The court made a note
of the time being 1:11 p.m. when stating that mother was not there. Mother’s counsel
requested a continuance, but the continuance was denied due to the length of time
the trial had already taken. Mother eventually arrived at 2:19 p.m.
Testimony of Krystal Thomas
{¶52} Mother had not submitted to a drug screen since the last hearing. A
drug screen was set up for March 7th. Mother took the urine test, but not the hair-
follicle test. The urine test came back positive for marijuana. Thomas testified:
21
OHIO FIRST DISTRICT COURT OF APPEALS
So since then, I tried to set Mom up for a drug screen, I believe,
about April the – around April 13th. * * * And I think I emailed her on
the 12th to tell her to go on the 13th. At that time, I ended up getting a
notification from our agency saying that her release of information was
no good. We had just got recent R.O.I., and Mom checked the box that
said no to the services. So I let Mom know that [sic] not to go to the
drug screen, that I needed her to do a new R.O.I., which I sent it to her
on the 15th of April. * * * And she said she would get it back to me.
And even in July she is still saying she’s going to get it back to me. I
even tried to meet up with her as well, sent it to her twice. And I
haven’t been able to get a drug screen from her. I did let her know in
several emails that I needed that drug screen, that release of
information to be able to move forward doing drugs screens for her. I
know she stated about dropping it off downtown two different times
when I always asked to meet up with her, but in the emails, I let her
know as well that I wasn’t working from JFS, that I was working from
home, and that she can either email it back over to me, fax it, or we can
meet up. And I just got several messages about how busy she’s been.
Thomas testified, “I know since I’ve had this case, I set her up for drug screens for
urinary, hair follicles. She’s only took [sic] one hair follicle, and that one she had
marijuana, benzo, and cocaine. And when I’ve asked her to take other drugs screens
for the hair follicle, she has not.” Mother tested positive for cocaine in December of
2019. Mother denied using drugs, despite the positive drug screen.
{¶53} When asked how she tried to meet up with mother, she responded, “I
emailed her, I called her, told her I would do a home visit. I told her, let me know
22
OHIO FIRST DISTRICT COURT OF APPEALS
her schedule so we can try to work around her schedule, because she would always
say how busy she was.” She did that every month, at least once a month. Thomas
testified that she had not “laid eyes” on mother since March.
{¶54} Mother did successfully complete parenting classes. After the visits
started at HCJFS, FNC emailed her on October 31, and she let mother know that she
needed to go to the FNC to complete orientation so the visits could continue there.
Mother told her at weekly visits that she was going to complete the orientation.
Thomas testified:
It got to be around December. I was still doing visits at the
agency. Mom told me that she had went [sic] to orientation several
times. I contacted the FNC to ask if that was done and what was the
holdup, and they told me that Mom had never even been to
orientation. So I did file a case plan letting the Court know that I was
stopping the visits until Mom did the orientation. So then I picked
back up the visits in February [of 2020].
{¶55} Mother completed the orientation around January 23. Thomas
testified, “So then right as she transitioned to the FNC, that’s when the whole COVID
19 situation happened. So then we had to stop the visits because she was getting
video calls and phone calls and things like that.” Mother is attending the visits to her
knowledge. She said, “Mom, she is late a lot. She has been late with me a few times.
But overall, she – normally, she does show up to the visits.” FNC has not reported
any issues or concerns to her. Mother’s visits are still only with D.S. and B.C.
{¶56} At the time of the hearing, mother was not engaged in therapy. When
asked how she knew that, Thomas responded:
23
OHIO FIRST DISTRICT COURT OF APPEALS
Well, she has a new case manager as of May 29th or May 30th
of this year. She had only spoken to Mom one time. The new case
manager set up appointments with Mom through like the one-call and
a lot of phone messages. [Mother] set up about four different times to
meet up, but she missed all the visits. I know [Mother] recently had let
her case manager know that her phone was off. However, the case
manager stated that [Mother]’s case would be closed, but it’s not
because [Mother] contacts the HomeLinks pretty often to try to get
housing which [Mother] has mentioned to me that she has contacted
them. I’ve asked [Mother] about her therapist and when was that
starting. She would say that because of COVID, that she wasn’t able to
get that done. But from GCB, that’s not correct. They don’t even have
her in there like she is even trying to start services. * * * And that they
are doing them there on the site and during Telehealth, so there’s
really know [sic] reason why she hasn’t started it.
Thomas testified that mother “just seems to have a lot of chaos going on in her life.
She doesn’t seem like she’s stable. She is not getting her mental health services taken
care of.”
{¶57} Mother was supposed to be staying with her mother but “she’s not
there that often.” Thomas verified that mother worked at Upshift October through
December of 2019. Mother sent her a link in April of 2020, showing she was hired at
KFC through Snag-A-Job. She worked at KFC from April through June of 2020,
then she quit. Mother told Thomas she quit because she wanted more money. In
April, the children were placed in respite care while P.R. and her husband figured out
“some marital issues.” They are now all together in another foster home. This foster
24
OHIO FIRST DISTRICT COURT OF APPEALS
home did not intend to adopt the children if permanent custody was granted to
HCJFS.
Testimony of Maternal Grandmother
{¶58} When asked if mother was living with her, grandmother responded,
“not consistently.” She testified that mother stays there “about a half a month” each
month. She did not know where mother was staying the rest of the time
Testimony of Mother
{¶59} Mother claimed she was late to the hearing because she was “jumped
this morning in Kentucky on my way here.” When discussing the release of
information, mother stated, “I hadn’t had a chance to sign it because I had [sic] been
busy with work and working out and trying to find a place to live and dealing with life
and trying to balance everything out like I’ve been trying to do.” She testified, “I plan
on signing the paperwork here today after court.” When asked if she was currently
engaged in therapy, Mother testified, “I’m working with GCB, Miss Carol, who is my
new worker because Mr. Orlando is no longer w [sic] GCB. She’s getting me in so I
can get to my therapy and deal with what I need to do [sic] with.”
{¶60} Mother testified that she was still living with her mother. She claimed
that she stays there the “whole time other than when I’m out. If I go out to stay at a
friend’s house or if I’m housesitting like I did the last few weeks.” She testified that
she was waiting to hear from Amazon “on a contingent offer.” She quit working at
KFC because “[t]hey weren’t paying me correctly. They were either shorting my
hours or they were not sending the paycheck to the correct destination.” She
testified that she also worked for a construction company doing cleanup from August
to November of 2019. In person visits just started back at FNC after the break due to
25
OHIO FIRST DISTRICT COURT OF APPEALS
COVID. She testified that she never got corrected by the facilitator for any of her
parenting skills.
{¶61} When asked about the positive drug test for “cocaine and benzos,” she
responded, “The cocaine had been from a hair test from my surgery in July, and this
was already discussed. This was already handled.” She continued, “So again, like I
said, the benzo and the cocaine was [sic] from a medical reason. It was from a
surgery, and the benzo had been from a panic attack that I had addressed in the
hospital.” She opined:
It was a medical reason so it is not countable because they had
to use a different form of steroid from my breathing when I had tube
removal in July of 2019. It was stated in my medical records, and it
was testified to and they know about it. So, again, no. That is a false
positive, and it is being used against me in an incriminating way and I
don’t appreciate it.
Relevant Exhibits
{¶62} Receipts from the Travel Inn were entered as an exhibit and showed
that mother stayed there for 33 days from September 9, 2019, to October 12, 2019.
Another receipt shows that mother stayed at Homewood Suites from October 13,
2019, to October 19, 2019. A letter from Vinebrook Homes, dated December 12,
2019, was included as an exhibit that shows mother was added as an occupant to
grandmother’s lease.
{¶63} An “Ohio Medical Marijuana Registry” card was entered as an exhibit
with mother’s name on it. The card says it was issued on “09/30/2019” and expires
on “09/30/20.”
26
OHIO FIRST DISTRICT COURT OF APPEALS
Juvenile Court Decision
{¶64} On September 1, 2020, the magistrate entered a decision granting
permanent custody of N.M., E.M., D.S., and B.C. to HCJFS. On September 16, 2020,
mother filed an objection to the magistrate’s decision. On September 30, 2020, the
juvenile court noted the objection was filed out of time but granted leave to file out of
time. Due to COVID, the juvenile court did not schedule oral arguments on the
objections but offered that the parties submit written arguments. All parties
submitted written arguments to the court. On March 24, 2021, the juvenile court
denied mother’s objection to the magistrate’s decision. First, the court found that all
the children, except for B.C., had been in the temporary custody of HCJFS for more
than 12 months, and found that B.C. could not and should not be placed with either
parent, because (1) mother’s unstable housing and income and her inability to
address her substance abuse and mental-health problems indicated that B.C. cannot
and should not be placed with mother, and (2) father filed a permanent surrender for
B.C. and relinquished his parental rights. Next, the court found:
M.M. [sic] has no interaction with Mother, and she had not
lived with Mother since 2018. M.M. [sic] expressly stated that she did
not want to live with or speak to Mother. She is currently living with a
foster family with D.S.
E.M. has no interaction with Mother, and she had not lived
with Mother since 2018. E.M. expressly stated that she did not want to
live with or speak to Mother. She is currently living with a foster
family.
D.S. currently has limited and supervised interaction with
Mother. D.S. is too young to express her wishes; D.S. lives with a
27
OHIO FIRST DISTRICT COURT OF APPEALS
foster family with M.M. [sic] and she has not lived with Mother since
her removal in 2017. Although D.S. has no expressed wishes and D.S.
interacts with Mother, D.S.’s custody has remained with a foster family
and her removal was instigated by a domestic violence incident with
[boyfriend]. Mother continued to live with [boyfriend] on and off after
the incident. D.S. needs a legally secure placement and D.S’ [sic]
custodial history indicates that it is in her best interest to be placed in
the permanent custody of HCJFS.
B.C. currently has limited and supervised interaction with
Mother. B.C. is too young to express his wishes; B.C. lives with a foster
family with M.M. [sic] and he has not lived with Mother since his
birth. B.C. is too young to express his wishes and he does maintain
some interaction with Mother. However, B.C.’s custodial history,
particularly his removal at birth, and his need for a legally secure
permanent placement that [sic] it is in his best interests to be placed in
the permanent custody of HCJFS.
{¶65} Additionally, the trial court found that the state had shown by clear
and convincing evidence that the children were in need of a legally secure placement
that mother could not provide. The court stated:
Mother has failed to remedy the initial problems that caused
removal and it is in the best interests of [the] children to be placed in
permanent custody. Mother has exhibited multiple untreated mental
health issues and this makes her unable to provide a stable home for
her children. Mother has continuously failed to follow agency
guidelines and she has failed to maintain a stable income and stable
28
OHIO FIRST DISTRICT COURT OF APPEALS
housing. The State has also taken multiple measures to avoid
permanent removal; however, Mother has continuously failed to be a
part of those preventive measures.
{¶66} Accordingly, the juvenile court found that it was in the best interest of
the children to be placed in the permanent custody of HCJFS.
{¶67} This appeal now follows. Mother raises a single assignment of error,
arguing that the trial court erred as a matter of law by granting HCJFS’s motion to
modify temporary custody to permanent custody. In support of the assignment of
error, mother asserts two issues for our review: (1) whether the trial court erred
when it concluded by clear and convincing evidence that the children cannot be
placed with mother within a reasonable time and should not be placed with mother
when that decision lacked sufficient evidence and was against the weight of the
evidence, and (2) whether the trial court erred when it concluded by clear and
convincing evidence that permanent custody to HCJFS was in the best interest of the
children when that decision lacked sufficient evidence and was against the weight of
the evidence.
Law and Analysis
{¶68} “A trial court’s award of permanent custody must be supported by
clear and convincing evidence, and we will not substitute our judgment for the trial
court’s when its decision is supported by competent, credible evidence.” In re C.L.,
1st Dist. Hamilton No. C-170169, 2017-Ohio-7184, ¶ 17, citing In re W.M., 1st Dist.
Hamilton No. C-170003, 2017-Ohio-1398, ¶ 14. “ ‘Our review for sufficiency asks
whether some evidence exists on each element. It is a test of adequacy, and whether
the evidence is sufficient to sustain the judgment is a question of law.’ ” In re D.M.,
1st Dist. Hamilton No. C-200043, 2020-Ohio-3273, ¶ 21, quoting In re A.B., 1st Dist.
29
OHIO FIRST DISTRICT COURT OF APPEALS
Hamilton Nos. C-150307 and C-150310, 2015-Ohio-3247, ¶ 15. “Our review of the
weight of the evidence ‘asks whether the evidence on each element satisfies the
burden of persuasion, which in this case was clear and convincing standard.’ ” Id.,quoting In re A.B.
{¶69} “R.C. 2151.414(B)(1) establishes a two-pronged test for courts to apply
when determining whether to grant a motion for permanent custody to a public
children services agency.” In re D.M. at ¶ 23. “The statute requires the court to find,
by clear and convincing evidence, that” (1) one of the enumerated factors in R.C.
2151.414(B)(1)(a)-(e) applies, and (2) permanent custody is in the best interest of the
child under R.C. 2151.414(D)(1)(a)-(e).” Id., citing R.C. 2151.414(B)(1).
First Prong - R.C. 2151.414(B)(1)(a)-(e)
{¶70} “[A] child shall be considered to have entered the temporary custody of
an agency on the earlier of the date the child is adjudicated pursuant to section
2151.28 of the revised code or the date that is sixty days after the removal of the child
from home.” R.C. 2151.414(B)(1). On October 30, 2017, N.M. and E.M. were
adjudicated dependent, and D.S. was adjudicated dependent and abused. HCJFS
filed a motion to modify temporary custody to permanent custody on December 6,
2018. The juvenile court determined, and the record confirms, that the first prong of
the permanent-custody test was satisfied as to N.M., E.M., and D.S., because the
children were in the temporary custody of HCJFS for 12 or more months of a
consecutive 22-month period. See R.C. 2151.414(B)(1)(d).
{¶71} As to B.C., the juvenile court found that he could not and should not be
placed with mother under R.C. 2151.414(B)(1)(a). If the court determines, by clear
and convincing evidence, that, “[f]ollowing the placement of the child outside the
child’s home and notwithstanding reasonable case planning and diligent efforts by
30
OHIO FIRST DISTRICT COURT OF APPEALS
the agency to assist the parents to remedy the problems that initially caused the child
to be placed outside the child’s home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be placed
outside the home,” then the court shall enter a finding that the child cannot be or
should not be placed with the parent. R.C. 2151.414(E)(1).
{¶72} The juvenile court found that B.C. could not and should not be placed
with mother because, “Mother’s unstable housing and income and her inability to
address her substance abuse and mental health problems indicate that B.C. cannot
and should not be placed with Mother.” The record reflects that, while mother did
complete parenting class and was consistent with visitation, mother failed to keep
consistent and stable housing and employment. Additionally, while mother did
complete a mental-health assessment, she failed to stay consistent with the
recommended therapy. Lastly, B.C. tested positive for oxycodone in his system at
birth in 2018. Mother began refusing hair-follicle drugs screens in early 2019. When
mother finally completed a hair-follicle drug screen in December of 2019, the test
was positive for “cocaine and benzos.” In 2020, mother again refused to complete
hair-follicle drug screens and then failed to complete the needed release of
information to continue drug testing. Therefore, clear and convincing evidence
existed in the record to support the trial court’s finding that B.C. could not and
should not be placed with mother within a reasonable time.
Second Prong - R.C. 2151.414(D)(1)
{¶73} “Under the second prong, the juvenile court must determine whether
granting permanent custody to the agency is in the best interest of the children.” In
re D.M., 1st Dist. Hamilton No. C-200043, 2020-Ohio-3273, at ¶ 47, citing R.C.
2151.414(B)(1). In relevant part, R.C. 2151.414(D)(1) provides:
31
OHIO FIRST DISTRICT COURT OF APPEALS
In determining the best interest of the child at a hearing held
pursuant to division (A) of this section or for the purposes of division
(A)(4) or (5) of section 2151.353 or division (C) of section 2151.415 of
the Revised Code, the court shall consider all relevant factors,
including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the
child’s parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or
through the child’s guardian ad litem, with due regard for the maturity
of the child;
(c) The custodial history of the child, including whether the
child has been in the temporary custody of one or more children
services agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two month period, or the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of
a consecutive twenty-two month period and, as described in division
(D)(1) of section 2151.413 of the Revised Code, the child was previously
in the temporary custody of an equivalent agency in another state;
(d) The child’s need for a legally secure permanent placement
and whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
32
OHIO FIRST DISTRICT COURT OF APPEALS
“No single factor is given greater weight or heightened significance.” In re D.M., 1st
Dist. Hamilton No. C-200043, 2020-Ohio-3273, at ¶ 47, citing In re C.F., 113 Ohio
St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57.
{¶74} N.M., E.M., and D.S. had been in the temporary custody of HCJFS for
12 or more months of a consecutive 22-month period. Additionally, B.C. had been in
the temporary custody of HCJFS since shortly after birth. N.M. and E.M. had no
interaction with mother and had expressed that they did not want to live with or
speak with mother. D.S. and B.C. had limited interactions with mother during visits
but were too young to express their wishes. B.C. was removed from mother’s care
shortly after birth after testing positive for oxycodone in 2018. Starting in 2019,
mother frequently refused to complete hair-follicle drug screens. In December of
2019, she tested positive for “cocaine and benzos.” After testing positive, she again
refused hair-follicle drugs screens in 2020 and then failed to complete the needed
release of information to continue drug testing. Mother also failed to follow through
with the recommended mental-health therapy. This confirms that the children were
in need of a legally secure placement that could not be achieved without a grant of
permanent custody to HCJFS. Therefore, the record supports the juvenile court’s
finding that a grant of permanent custody was in the best interest of the children.
Conclusion
{¶75} For the foregoing reasons, the juvenile court’s award of permanent
custody was supported by clear and convincing evidence and was not against the
manifest weight of the evidence. Accordingly, we overrule the assignment of error
and affirm the judgment of the juvenile court.
Judgment affirmed.
CROUSE and WINKLER, JJ., concur.
33
OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its own entry this date.
34